ADA website accessibility lawsuits are brought by blind or visually impaired plaintiffs seeking injunctive relief and sometimes money damages based on a company’s alleged failure to design, maintain, and operate its website (and in some instances its app) to be fully accessible and usable by the plaintiffs and other blind or visually-impaired people. In the same way a grocery store does not have an ADA compliant entrance that would permit a person in a wheelchair to access the store, for example, in ADA website accessibility lawsuits plaintiffs argue that offending websites do not permit them to access the website and its features.
In ADA website accessibility lawsuits, Plaintiffs claim that a company has failed to maintain a website in a manner that is accessible to blind or visually impaired people is a violation of the ADA. Plaintiffs in ADA website accessibility lawsuits seek injunctions requiring companies to comply with Web Content Accessibility Guidelines (WCAG) 2.0 attorney fees and costs, and where available, money damages.
ADA Website Lawsuits are on the Rise
By our count, over 2,300 ADA website accessibility lawsuits were filed in federal courts in 2019 (based on CNS search), which is about the same as in 2018. In 2017, the number of ADA website accessibility lawsuits filed was under 1,000. There is no reason to think that the number of ADA website lawsuits will decrease. To date, the large majority of ADA website accessibility lawsuits have been filed in New York, Florida, Illinois and California, and as plaintiffs and plaintiff’s lawyers bring ADA website accessibility lawsuits in new jurisdictions (like Colorado) we expect the numbers will increase dramatically. We assume Federal Courts with open bar admissions for out of state lawyers will see the quickest increase in ADA website accessibility lawsuit filings due to convenience for national plaintiff’s attorneys.
The ADA and Robles v. Domino’s
The ADA expressly provides that a place of public accommodation, like a grocery store, engages in unlawful discrimination if it fails to “take such steps as may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services.” 42 U.S.C. § 12182(b)(2)(A)(iii). Department of Justice regulations require that a public accommodation “furnish appropriate auxiliary aids and services where necessary to ensure effective communication with individuals with disabilities.” 28 C.F.R. § 36.303(c)(1). Therefore, the ADA mandates that places of public accommodation provide auxiliary aids and services to make visual materials available to individuals who are blind.
Thus, a threshold question in ADA website accessibility lawsuits is whether the defendant company is a “place of public accommodation.” Many defendants have argued that websites are not “places of public accommodation” however, the general consensus among the courts that have addressed the issue is that websites (with limited exceptions) are indeed “places of public accommodation.”
In Robles v. Domino’s Pizza, LLC, the Ninth Circuit Court of Appeals held that Title III of ADA, which prohibits discrimination in places of public accommodation, applied to pizzeria operator’s website and mobile application. “The statute applies to the services of a place of public accommodation, not services in a place of public accommodation. To limit the ADA to discrimination in the provision of services occurring on the premises of a public accommodation would contradict the plain language of the statute.” Nat’l Fed’n of the Blind v. Target Corp.
Domino’s sought review from the Supreme Court of the United States, however the request was denied, and the 9th Circuit’s holding stands. It is reasonable to assume other courts will follow.
As the large majority of ADA website accessibility lawsuits have been filed in New York, Florida and California, not all Circuits courts have faced the question, and indeed, not many United States District Courts have seen ADA website accessibility lawsuits yet. For example, the first ADA website accessibility lawsuits in Colorado were filed in December, 2019. We expect these Colorado ADA website accessibility cases to generate decisions that will be appealed to the Tenth Circuit Court of Appeals.
Defend or Settle ADA Website Accessibility Lawsuits?
Whether to defend or settle an ADA website accessibility lawsuit is the $64,000 Question. In our experience, plaintiffs and their lawyers will make a demand that is calculated to make the defending company strongly consider settling without incurring attorney fees. We often refer to this as settling for “nuisance value settlement,” i.e. the dollar amount at which you are willing to just pay to make it go away. However, quick settlements can lead to larger problems, such as “copycat” lawsuits by other plaintiffs and plaintiff’s lawyers.
Simply, settling with one Plaintiff does not ensure you will not be sued by other Plaintiffs. Plaintiffs’ attorneys bringing these cases are looking for a fast turn, to maximize profits, and if they know Company X will settle for $10,000 without filing an answer, Company X becomes a known easy target. So, this strategy must be evaluated carefully.
Defending an ADA website lawsuit likewise is not a decision to be taken lightly. Most ADA website accessibility lawsuits are filed as class action lawsuits, and if the plaintiff is able to certify a class, the associated costs could be very high.
Motions to dismiss ADA website accessibility lawsuits often attack plaintiff standing, mootness, and sufficiency of the allegations – but these motions are often denied. However, if certain facts exist in a particular case, a motion to dismiss could be quite effective, and could have the effect of “scaring off” copycat plaintiffs. In our experience with these types of cases and the plaintiffs lawyers that bring them, engaging in discovery can be quite effective in helping both sides understand the strengths and weaknesses of the case, and result in better resolutions.
Damages available in an ADA Website Accessibility Lawsuit
The traditional remedy in a private ADA Title III lawsuit is injunctive relief. Injunctive relief is when the defendant is court ordered to do (or stop doing) some act – such as making a website accessible, to modify an existing policy or practice, or whatever else the court deems appropriate to enable blind or visually impaired people full use and enjoyment of a website.
Also critical to the evaluation is the fact that the court may also award attorneys’ fees to the plaintiff at its discretion. The court’s discretion is limited however, and ordinarily a prevailing plaintiff will recover attorney fees unless special circumstances would make such an award unjust. Likewise, prevailing defendants may be entitled to attorneys fees if the ADA website accessibility lawsuit was frivolous, unreasonable, or brought in bad faith.
As one court stated: “Fee shifting under the ADA, like other civil rights statutes, is asymmetric: fees should be awarded to prevailing plaintiffs as a matter of course, but prevailing defendants should recover only when forced to litigate claims that are frivolous, unreasonable, or pursued in bad faith.” Sanglap v. LaSalle Bank, FSB.
If an ADA Title III case were to be brought by the Department of Justice that are to vindicate the public interest, the Department of Justice may also seek civil penalties of up to $50,000 for the first violation and up to $100,000 for each subsequent violation.
The lack of money damages in private lawsuits may seem like a disincentive to a potential plaintiff, but there may be analogous state discrimination laws that do provide damages, such as in New York and California. Also, the availability of attorney fees is a significant incentive for Plaintiffs attorneys.
ADA Website Accessibility Lawsuit Best Practices
First things first – we have yet to meet a client or company that desires to discriminate against blind or visually impaired people. Most companies we encounter are simply unaware their website may not be accessible.
A company’s best course of action to avoid an ADA website accessibility lawsuit is to be proactive. Ask your IT Department or website team to evaluate your website to determine if it is ADA compliant. Critically, make and keep a record of those communications and efforts.
Now, determining if your website is ADA compliant is not always easy. There are no guidelines from the DOJ. Thus, you need to work with unofficial industry standards and guidelines, such as WCGA 2.0AA. Monitor your website, and re-evaluate periodically to ensure compliance. While this may not completely protect you from claims made by plaintiffs, it will go a long way to showing you made reasonable efforts to comply.
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